Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations

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1 [Corrected] On page 41771, in , in the third column, the tables are corrected to read as set forth below: * * * * * (s) * * * Transmit (receive) (MHz) (3) 10 MHz bandwidth channels: Receive (transmit) (MHz) * * * * * * * * * * * * * * * * * * * * Transmit (receive) (MHz) (7) 50 MHz bandwidth channels: Receive (transmit) (MHz) * * * * * * * * * * 2 These frequencies may be assigned to low power systems, as defined in paragraph (8) of this section. * * * * * [FR Doc. C Filed ; 8:45 am] BILLING CODE D DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R9-IA ] [MO B6] RIN 1018 AW40 Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Five Penguin Species AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine threatened status for five penguins: The yellow-eyed penguin (Megadyptes antipodes), white-flippered penguin (Eudyptula minor albosignata), Fiordland crested penguin (Eudyptes pachyrhynchus), Humboldt penguin (Spheniscus humboldti), and erectcrested penguin (Eudyptes sclateri) under the Endangered Species Act of 1973, as amended (Act). DATES: This rule becomes effective September 2, ADDRESSES: This final rule is available on the Internet at Comments and materials received, as well as supporting documentation used in the preparation of this rule, will be available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 420, Arlington, VA FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; telephone ; facsimile If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at SUPPLEMENTARY INFORMATION: Background On December 18, 2008, we published a proposed rule (73 FR 77303) to list the yellow-eyed penguin (Megadyptes antipodes), white-flippered penguin (Eudyptula minor albosignata), Fiordland crested penguin (Eudyptes pachyrhynchus), Humboldt penguin (Spheniscus humboldti), and erectcrested penguin (Eudyptes sclateri) under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C et seq.). That document also served as the 12 month finding on a petition to list these species, which are 5 of 12 penguin species included in the petition. We opened the public comment period on the proposed rule for 60 days, ending February 17, 2009, to allow all interested parties an opportunity to comment on the proposed rule. On March 9, 2010, the Center for Biological Diversity (CBD) filed a complaint (CV , N.D. Cal) for failure to issue a final listing determination within 12 months of the proposal to list the species. In a courtapproved settlement agreement, the Service agreed to submit a final rule to the Federal Register by July 30, Previous Federal Action For a detailed history of previous Federal actions involving these five penguin species, please see the Service s proposed listing rule, which published in the Federal Register on December 18, 2008 (73 FR 77303). VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 Summary of Comments and Recommendations In the proposed rule published on December 18, 2008 (73 FR 77303), we requested that all interested parties submit information that might contribute to development of a final rule. We also contacted appropriate scientific experts and organizations and invited them to comment on the proposed listings. We received 13 comments: 4 from members of the public, and 9 from peer reviewers. We reviewed all comments received from the public and peer reviewers for substantive issues and new information regarding the proposed listing of these five species, and we have addressed those comments below. Overall, the commenters and peer reviewers supported the proposed listings. One comment from the public included substantive information; other comments simply supported the proposed listing without providing scientific or commercial data. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we requested expert opinions from 14 knowledgeable peer reviewers with scientific expertise that included familiarity with the species, the geographic region in which the species occur, and conservation biology principles. We received responses from nine of the peer reviewers. They generally agreed that the description of the biology and habitat for each species was accurate and based on the best available information. They provided some new or additional information on the biology and habitat of some of these penguin species and their threats, and we incorporated that information into the rulemaking as appropriate. In some cases, it has been indicated in the citations by personal communication, which could indicate either an or telephone conversation, while in other cases the research citation is provided. Peer Reviewer Comments (1) Comment: Several peer reviewers provided new data and information regarding the biology, ecology, life history, population estimates, and threat factors affecting these penguin species, and requested that we incorporate the new data and information into this final rule and consider it in making our listing determination. With respect to potential threats, one peer reviewer raised the issue of flipper banding of the yellow-eyed Several peer reviewers provided clarifying information on predation with respect

2 45498 to the Humboldt and white-flippered penguins. Additionally, some of the peer reviewers provided technical corrections and brought to our attention recent papers discussing taxonomy and genetics. Our Response: In addition to the critical review provided by species experts, we considered scientific and commercial information regarding these penguin species contained in technical documents, published journal articles, and other general literature documents, including over 30 documents we reviewed since the publication of the proposed rule to list these 5 penguin species. We have incorporated the new information and technical corrections into this final rule. In addition, we address flipper banding of the yelloweyed penguin, and information on predation of the Humboldt and whiteflippered penguins in the threats analyses for those species in this final rule. (2) Comment: One peer reviewer suggested that the mainland and sub- Antarctic populations of yellow-eyed penguins should be considered separate management units, stating that there was negligible genetic interchange between populations. The peer reviewer cited information from 1989, and indicated that more recent work was in review, although no researcher or paper was cited. Our Response: We reviewed the best available information, including two papers on the genetics of yellow-eyed penguin published in 2008 and 2009, and found no basis to amend our initial finding. The 2008 and 2009 papers support our finding that the species should be listed as threatened throughout its range. Additional discussion is found later in this document under yellow-eyed (3) Comment: One peer reviewer raised the issue that the taxonomy of the white-flippered penguin has long been in debate. Our Response: We reviewed the best available information regarding the taxonomy of white-flippered penguin (Eudyptula minor albosignata), and we found no basis to amend our taxonomic treatment of the species. See the background section below on whiteflippered penguin for additional discussion. Public Comments (4) Comment: One commenter provided additional information regarding potential threat factors affecting these five species, and requested that we consider the information and incorporate it into the listing determinations. Specifically, the commenter indicated that the Service failed to address anthropogenic climate change and how it will affect penguins, particularly the Humboldt The commenter also requested that we address the issue of accelerated ocean warming and ocean acidification. The commenter suggested that the ph (acidity) of the ocean is rapidly changing, and may lower by 0.3 to 0.4 units by the year 2100, which would mean the acidity would increase by 100 to 150 percent. The commenter cited Orr et al and Meehl et al Our Response: We thank the commenter who provided this information for our consideration in making this final listing determination. We will first respond to the comment that greenhouse gas emissions will accelerate ocean warming and increase sea level rise. Gille (2002, p. 1276) found that while ocean warming occurred in the 1950s and 1960s, it leveled off in the 1980s and 1990s; overall, there was an increase in ocean water temperature in the Southern Hemisphere over the past 50 years. Looking forward to years , precipitation is predicted to increase across the sub-antarctic and Antarctic region, with a greater than 20 percent increase predicted for the Antarctic continent (IPCC 2007, p. 10). We acknowledge that ocean warming and sea level rise may occur. Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level ((IPCC 2007, p. 30). During the status review, we carefully evaluated threats facing these species. We considered the various threats in part based on their severity. In some cases, the effects of climate change are unpredictable and understudied, and the best available information does not indicate how increased sea level rise and ocean warming may affect these five penguin species. However, we determined what major stressors are affecting the status of the species, and evaluated those stressors based on the best available scientific and commercial information Secondly, we acknowledge that the issue of ocean acidification was not directly addressed in the proposed rule. Again, with respect to penguins, the best available information does not address how ocean acidity would impact the physiology and food web associated with these five penguin species. We acknowledge that ocean acidification may be a concern, but at this time, any conclusion would be purely speculative regarding how much VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 the oceanic ph may change in the penguins habitat and how the other changes in the species environments would interact with other known threats. The manner in which a change in ocean ph may affect penguins is currently unpredictable. (5) Comment: The same commenter requested that the Service consider listing these five species as endangered instead of threatened based on the two issues noted above. Our Response: Section 4(b)(1)(A) of the Act requires us to make listing decisions based solely on the best scientific and commercial data available. We have thoroughly reviewed all available scientific and commercial data for these species in preparing this final listing determination. We reviewed historical and recent publications, as well as unpublished reports, concerning these species. In addition, we used peer review to provide a more focused, independent examination of the available scientific information and its application to the current status of the species. As part of our evaluation, we carefully considered the quality and reliability of all data to decide which constitutes the best available data for our consideration in making our final determination. We analyzed the threats in making our determination, and our review of the threat factors indicate that listing these five species as threatened is warranted. After reviewing the peer review and public comments we received, we have no reason to alter our assessment. Based on our analysis, we determined that none of these five penguin species is currently in danger of extinction throughout its entire range, and therefore none of them meet the definition of endangered under the Act (16 U.S.C. 1532(6)). Summary of Changes from Proposed Rule We fully considered comments from the public and peer reviewers on the proposed rule to develop this final listing of five foreign penguin species. This final rule incorporates changes to our proposed listing based on the comments that we received that are discussed above and newly available scientific and commercial information. Reviewers generally commented that the proposed rule was very thorough and comprehensive. We made some technical corrections based on new, although limited, information. None of the information, however, changed our determination that listing these five species as threatened is warranted.

3 45499 Species Information and Factors Affecting the Species Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. The five factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Below is a species-by-species threats analysis of these five factors. The species are considered in the following order: Yellow-eyed penguin, whiteflippered penguin, Fiordland crested penguin, Humboldt penguin, and erectcrested Yellow-eyed Penguin (Megadyptes antipodes) Background The yellow-eyed penguin, also known by its Maori name, hoiho, is the third largest of all penguin species, averaging around 18 pounds (lb) (8 kilograms (kg)) in weight, the males averaging 1 kg more than females at 8.5 kg. It is the only species in the monotypic genus Megadyptes (Boessenkool et al. 2009, p. 819). Yellow-eyed penguins breed on the southeast coast of New Zealand s South Island, from Banks Peninsula to Bluff at the southern tip; in Fouveaux Strait, and on Stewart and adjacent islands just mi (30 km) from the southern tip of the New Zealand mainland; and at the sub-antarctic Auckland and Campbell Islands, 300 mi (480 km) and 380 mi (608 km), respectively, south of the southern tip of the South Island. The distribution is thought to have moved north since the 1950s (McKinlay 2001, p. 8). The species is confined to the seas of the New Zealand region and forages over the continental shelf (Taylor 2000, p. 93). Unlike more strongly colonial breeding penguin species, yellow-eyed penguins nest in relative seclusion, out of sight of humans and one another (Ratz and Thompson 1999, p. 205; Seddon and Davis 1989, pp ; Wright 1998, pp. 9 10). Current terrestrial habitats range from native forest to grazed pasture (McKinlay 2001, p. 10). In some places, they nest in restored areas, and in other places, they nest in areas where livestock are still present (McKinlay 2001, p. 10). Prior to land clearing for agriculture by European settlers, the historic habitat was in coastal forests and shrub margins (Marchant and Higgins 1990, p. 237). In 2001, the New Zealand Department of Conservation (NZDOC) published the Hoiho (Megadyptes antipodes) Recovery Plan ( ) to state the NZDOC s intentions for the conservation of this species, to guide the NZDOC in its allocation of resources, and to promote discussion among the interested public (McKinlay 2001, p. 20). The goal of the Recovery Plan, which updates a plan previously in place, is to increase yellow-eyed penguin numbers and have active community involvement in their conservation. The primary emphasis over the 25 year period is to retain, manage and create terrestrial habitat and to investigate the mortality of hoiho at sea (McKinlay 2001, p. 2). In 2007, the total population estimate was 1,600 breeding pairs (3,200 breeding adults in the population) (Houston 2007, p. 3). As of 2009, the total estimate for this species is 7,000 individuals (Boessenkool et al. 2009, p. 815), which is not substantially different from the 2007 estimate. In the recent past, the number of breeding pairs has undergone dramatic periods of decline and fluctuation in parts of its range on the mainland of the South Island. Records suggest that the mainland populations declined by at least 75 percent from the 1940s to In 1988, there were 380 to 400 breeding pairs (Darby and Seddon 1990, p. 59). There have been large fluctuations since a low of about 100 breeding pairs in the breeding season to over 600 in the breeding season (McKinlay 2001, p. 10). Current mainland counts indicate 450 breeding pairs on the southeast coast of the mainland of the South Island (Houston 2007, p. 3). As recently as the 1940s, there were reported to be individual breeding areas where penguin numbers were estimated in the hundreds; in 1988, only 3 breeding areas on the whole of the South Island had more than 30 breeding pairs (Darby and Seddon 1990, p. 59). Just across the Fouveaux Strait at the southern tip of the South Island, at Stewart Island and nearby Codfish Island, yellow-eyed penguin populations numbered a combined estimate of 178 breeding pairs in the early 2000s (Massaro and Blair 2003, p. 110). While these populations are essentially contiguous with the mainland range, this is the first VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 population estimate for this area based on a comprehensive count. This estimate, while lower than previous estimates, may be lower because when the population estimates were done in the 1980s and 1990s, they were partial surveys rather than full surveys. It is unclear whether numbers have declined in the past two decades or whether previous estimates, which extrapolated from partial surveys, were overestimates (Massaro and Blair 2003, p. 110), but evidence points to the latter. For example, Darby and Seddon (1990, p. 58) provided 1988 estimates of 470 to 600 breeding pairs at Stewart Island and nearby Codfish Island, which the researchers extrapolated from density estimates. In the Hoiho Recovery Plan, which reported these 1988 numbers, it is noted that, In the case of Stewart Island, these figures should be treated with a great deal of skepticism. Only a partial survey was completed in the early 1990s (McKinlay 2001, p. 8). Darby (2003, p. 148), one of the authors of the 1988 estimate, subsequently reviewed survey data from the decade between 1984 and 1994 and revised the estimates for this region down to 220 to 400 pairs. Houston (2008, p. 1) reported numbers are stable in all areas of Stewart and Codfish Islands, except in the northeast region of Stewart Island where disease and starvation are impacting colonies, as discussed in detail below. While it is reported that the numbers of birds at Stewart and Codfish Islands have declined historically (Darby and Seddon 1990, p. 57), it is unclear to what extent declines are currently under way. As of 2007, in the sub-antarctic island range of the yellow-eyed penguin, there were an estimated 400 pairs on Campbell Island (down from 490 to 600 pairs in 1997), and 570 pairs on the Auckland Islands (Houston, 2007, p. 3). The yellow-eyed penguin is classified as Endangered by the International Union for Conservation of Nature (IUCN) criteria (BirdLife International 2007, p. 1). When the New Zealand Action Plan for Seabird Conservation was completed in 2000, the species IUCN Status was Vulnerable, and it was listed as Category B (second priority) on the Molloy and Davis threat categories employed by the New Zealand Department of Conservation (NZDOC) (Taylor 2000, p. 33). On this basis, the species was placed in the second tier of New Zealand s Action Plan for Seabird Conservation. The species is listed as acutely threatened nationally vulnerable on the New Zealand Threat Classification System

4 45500 List (Hitchmough et al. 2007, p. 45; Molloy et al. 2002, p. 20). Summary of Factors Affecting the Yellow-eyed Penguin Factor A. The Present or Threatened Destruction, Modification, or Curtailment of the Yellow-eyed Penguin s Habitat or Range Deforestation and the presence of grazing animals and agricultural activities have destroyed or degraded yellow-eyed penguin habitat throughout the species range on the mainland South Island of New Zealand. Much of the decline in breeding numbers can be attributed to loss of habitat (Darby and Seddon 1990, p. 60; Taylor 2000, p. 94). The primary historic habitat of the reclusive yellow-eyed penguin on the southeast coast of the South Island of New Zealand was the podocarp hardwood forest. During the period of European settlement of New Zealand, almost all of this forest was cleared for agriculture, with forest clearing activities continuing into at least the 1970s (Sutherland 1999, p. 18). This has eliminated the bulk of the historic mainland breeding vegetation type for this species (Marchant and Higgins 1990, p. 237). With dense hardwood forest unavailable, the breeding range of yellow-eyed penguins has now spread into previously unoccupied habitats of scrubland, open woodland, and pasture (Marchant and Higgins 1990, p. 237). Here the breeding birds are exposed to new threats. In agricultural areas, breeding birds are exposed to the trampling of nests by domestic cattle. For example, on the mainland Otago Peninsula in 1985, cattle destroyed 25 out of 41 nests (60 percent) (Marchant and Higgins 1990, p. 238). Yellow-eyed penguins are also more frequently exposed to fire in these new scrubland and agricultural habitat, such as a devastating fire in 1995 at the Te Rere Yellow-eyed Penguin Reserve in the southern portion of the mainland of the South Island, which killed more than 60 adult penguins out of a population of 100 adults at the reserve, as well as fledgling chicks on shore (Sutherland 1999, p. 2; Taylor 2000, p. 94). Five years after the fire, there was little evidence of recovery of bird numbers at this reserve (Sutherland 1999, p. 3), although there had been considerable efforts to restore the land habitat through plantings, creation of firebreaks, and predator control. Habitat recovery efforts, dating as far back as the late 1970s and set out in the Hoiho Species Conservation Plan (McKinlay 2001, p. 12), have focused on protecting and improving breeding habitats. Habitat has been purchased or reserved for penguins at the mainland Otago Peninsula, North Otago, and Catlins sites, with 20 mainland breeding locations (out of an estimated 32 to 42) reported to be under statutory protection against further habitat loss (Ellis 1998, p. 91). New, currently unoccupied areas have been acquired to provide the potential to support increased populations in the future (McKinlay 2001, p. 12). Fencing and re-vegetation projects have been implemented to restore nesting habitat and to exclude grazing animals from breeding habitats (McKinlay 2001, p. 12). In some cases, efforts to fence penguin reserves to reduce trampling by cattle have created more favorable conditions for attack by introduced predators (see Factor C) (Alterio et al. 1998, p. 187). In addition, the Yelloweyed Penguin Trust has been active in the conservation of this species, and has purchased land specifically for the protection of the species ( Despite these efforts, yellow-eyed penguin numbers on the mainland have not increased and have continued to fluctuate dramatically at low levels, with no sustained increases over the last 27 years (McKinlay 2001, p. 10). Although we did not rely on future conservation efforts by New Zealand in our analysis of threats, we note that efforts in the second phase of the Hoiho Recovery Plan continue to focus on managing, protecting, and restoring the terrestrial habitat of the yellow-eyed penguin (McKinlay 2001, p. 15). On the offshore and sub-antarctic islands of its range, feral cattle and sheep destroyed yellow-eyed penguin nests on Enderby and Campbell Islands (Taylor 2000, p. 94). All feral animals were removed from Enderby Island in 1993, and from Campbell Island in 1984 (cattle) and 1991 (sheep) (Taylor 2000, p. 95). Reports indicate very little change in the quality of terrestrial habitat of the yellow-eyed penguin habitat on these islands (McKinlay 2001, p. 7). Although individual locations remain susceptible to fire or other localized events, the threat of manmade habitat destruction has been reduced over the dispersed range of the species on the mainland South Island. In our analysis of other threat factors, in particular Factor C, we will further examine why the recovery goals for mainland populations have not been achieved. Specifically, the goal in the recovery plan of maintaining two managed mainland populations, each with a minimum of 500 pairs, was not achieved (McKinlay 2001, p. 13). Eight VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 years into the recovery plan, the long-term goal to increase yelloweyed penguin populations remains elusive. However, significant public and private efforts have been undertaken in New Zealand over past decades to protect and restore yellow-eyed penguin breeding habitat on the mainland South Island. Further, the species island breeding habitats have either not been impacted or, if historically impacted, the causes of disturbance have been removed. In addition, the Yellow-eyed Penguin Trust has been active in the conservation of this species, and has purchased land specifically for the protection of the species. Because these conservation efforts have been implemented, we find that the present or threatened destruction, modification, or curtailment of its terrestrial habitat or range is not a threat to the species. In the marine environment, yelloweyed penguins forage locally around colony sites during the breeding season. Unlike most penguin species, yelloweyed penguins tend to be benthic (bottom of ocean) rather than pelagic (surface of ocean) feeders (Mattern 2007, p. 295). They are known to feed on a variety of fish and squid species, including opal fish (Hemerocoetes monopterygius), blue cod (Parapercis colias), sprat (Sprattus antipodum), silverside (Argentina elongata), red cod (Pseudophycis bachus), and arrow squid (Nototodarus sloani) (van Heezik 1990b, pp ). Yellow-eyed penguins that were tracked from breeding areas on the Otago Peninsula on the mainland of the South Island foraged over the continental shelf in waters from 131 to 262 feet (ft) (40 to 80 meters (m)) deep. In foraging trips lasting on average 14 hours, they ranged a median of 8 mi (13 km) from the breeding area (Moore 1999, p. 49). Foraging ranges utilized by birds at the offshore Stewart Island were quite small (ca. 7.9 mi 2 (20.4 km 2 )) compared to the areas used by birds at the adjacent Codfish Islands (ca. 208 mi 2 (540 km 2 )) (Mattern et al. 2007, p. 115). There is evidence that modification of the marine environment by human activities may reduce the viability of foraging areas for yellow-eyed penguins on a local scale. Mainland population declines in have been attributed to changes in the marine environment and failure of quality food (McKinlay 2001 p. 9), but we have not found evidence attributing recent population changes at either mainland colonies or the more distant Campbell and Auckland Islands colonies to changes in the marine environment. Mattern et al. (2007, p. 115) concluded that degradation of benthic

5 45501 habitat by commercial oyster dredging is limiting viable foraging habitat and increasing competition for food for a small portion of Stewart Island penguins breeding in areas on the northeast coast of that island, resulting in chick starvation (King 2007, p. 106). Chick starvation and disease are the two most prevalent causes of chick death at the northeast Stewart Island study colonies (King 2007, p. 106). Poor chick survival and, presumably, poor recruitment of new breeding pairs, is reported to be the main cause of a decline in the number of breeding pairs (King 2007, p. 106). At the adjacent Codfish Island, where food is more abundant and diverse (Browne et al. 2007, p. 81), chicks have been found to flourish even in the presence of disease. Browne et al. (2007, p. 81) found dietary differences between the two islands. Stewart Island chicks received meals comprised of fewer species and less energetic value than those at Codfish Island. The foraging grounds of these two groups do not overlap, suggesting that local-scale influences in the marine environment (Mattern et al. 2007, p. 115) are impacting the Stewart Island penguins. These authors concluded that at Stewart Island, degradation of benthic habitat by commercial oyster dredging is limiting foraging habitat for yellow-eyed penguins. The 178 pairs on Stewart Island and adjacent islands make up 11 percent of the total current population, and only a portion of this number are affected by the reported degradation of benthic habitat by fisheries activities. Therefore, while the present or threatened destruction, modification, or curtailment of its marine habitat or range by commercial oyster dredging is a threat to chick survival for some colonies at Stewart Island, we find that the present or threatened destruction, modification, or curtailment of its marine habitat is not a threat to the species overall. Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The yellow-eyed penguin has become an important part of the ecotourism industry on the mainland South Island of New Zealand, particularly around the Otago Peninsula and the Southland areas. Tourism is the primary commercial, recreational, or educational use of the yellow-eyed Approximately 126,000 tourists viewed penguins in New Zealand in 2006 and 2007 (NZ Ministry of Tourism, 2007). When the proposed rule was published, we were not aware of tourism activities in the island portions of the range of the yellow-eyed However, since then, we have learned that tourists are viewing yellow-eyed penguins on Enderby Island, which is the northernmost island of a Subantarctic group known as the Auckland Islands approximately 320 km (199 mi) south of New Zealand. Yelloweyed penguins are extremely wary of human presence and will not land on the beach if humans are in sight (McClung et al. 2004, p. 279). Yelloweyed penguins select nest sites with dense vegetative cover and a high degree of concealment (Marchant and Higgins 1990, p. 240), and prefer to be shaded from the sun and concealed from their neighbors (Seddon and Davis 1989, p. 653). Given these secretive habits, research has focused on how the potential of increasing tourism impacts yellow-eyed penguins (Seddon and Ellenberg, 2008). In one study, yelloweyed penguins showed lower breeding success in areas of unregulated tourism than in those areas visited infrequently for monitoring purposes only (McClung et al. 2004, p. 279). In an older study, no obvious impacts of tourist presence were found (Ratz and Thompson 1999, p. 208). Breeding success appeared to be equivalent in both the colony visited by tourists and the colony not visited by tourists; however, the penguins were habituated to a particular noninvasive level of tourism. In newer studies, disturbance was associated with increased heart rate, stress level, energy use, and corticosterone levels (associated with stress) in parents and lower fledgling weights of chicks (Ellenberg et al. 2006, p. 95). Yellow-eyed penguins exhibited a stronger initial stress response than other penguin species at a breeding site exposed to unregulated tourism compared to an undisturbed area (Seddon and Ellenberg, 2008p. 171.) These studies have provided information, some of which is being used in the design of visitor management and control procedures at yellow-eyed penguin viewing areas to minimize disturbance to breeding pairs. A key impact from human disturbance described in the Recovery Plan is that yellow-eyed penguins may not come ashore or may leave the shore prematurely after landing. The Hoiho Recovery Plan identified 14 mainland areas where current practices of viewing yellow-eyed penguins already minimize tourism impacts on yellow-eyed penguins and recommends that practices in these areas remain unchanged. Eight additional areas were identified as suitable for development as tourist destinations to observe yelloweyed penguins where minimization of VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 tourism impacts can be achieved (McKinlay 2001, p. 21). NZDOC is using these existing lists to guide the approval of tourism. Overall, under the plan, tourism is being directed to those sites where impacts of tourism can be minimized. However, unregulated tourism still occurs (McKinlay 2001, p. 8; PenguinSpirit 2009, p. 2, BLI 2010b, p. 2) and affects penguins. With respect to the impact of research on yellow-eyed penguins, flipper banding for scientific research was identified as having a negative effect on some penguin species. At a 2005 penguin symposium, van Heezik presented findings (pp ) that flipper banded penguins had a lower survival rate than nonbanded penguins for age class 2 to 11. Another review of scientific research regarding flipper banding found the survival rate of flipper banded penguins compared with nonbanded penguins to be 21 percent less (Froget et al. 1998, pp ). Dugger found a 10 percent reduced survival rate in stainless steel banded penguins compared with nonbanded penguins (Petersen et al. 2006, p. 76). Petersen s review of the effects of flipper banding indicated that there may be negative effects of flipper banding. Different types of banding have been used, and species appear to be affected differently by them. In addition, there may be coping mechanisms to compensate for any drag that penguins experience when swimming with flipper bands. Other evidence of negative effects of flipper banding include the finding that unbanded King penguin adults were more likely to successfully breed, possibly because they arrived earlier at the colony for courtship. They produced almost twice as many young over four breeding seasons (Gauthier-Clerc et al. 2004, p. 424). Researchers hypothesize that the unbanded penguins have a competitive advantage over the banded penguins, which appears to be a reasonable conclusion. This research identified flipper banding as a problem, and the penguin scientific community subsequently modified banding techniques. The detrimental tagging methods were abandoned or modified. Therefore, after evaluating this factor, we find that flipper banding, while it should continue to be monitored, does not constitute a threat to this species. We have found no other reports of impacts on this species from scientific research or any other commercial, recreational, scientific, or educational purposes. Nature-based tourism has increased in recent decades. The New Zealand DOC, in cooperation with conservation,

6 45502 tourism, and industry stakeholders, has put measures in place to understand and minimize the impacts of tourism activities on the yellow-eyed penguin through the Hoiho Recovery Plan. A study by Seddon and Ellenberg in 2008 indicates that yellow-eyed penguins are particularly sensitive to human disturbance such as tourism (pp ). Although yellow-eyed penguins do not always exhibit an obvious alarm reaction, other penguin species have exhibited increased heart rates when humans were within 1 m (3 ft) of nesting penguins (Seddon and Ellenberg, 2008, pp. 167, 170). Yelloweyed penguins needed more recovery time than other penguins after exposure to a stressor (p. 170), and this stress response carries with it an associated expenditure of energy. Based on this information, we find that overutilization for commercial, recreational, scientific, or educational purposes, particularly unregulated tourism, is a threat to the yellow-eyed Factor C. Disease or Predation Disease has been identified as a factor influencing both adult and chick mortality in yellow-eyed penguins. We have identified reports of one major disease outbreak involving adult penguins and ongoing reports of disease in yellow-eyed penguin chicks. Initial investigation of a major die-off of adult yellow-eyed penguins at Otago Peninsula in 1990 failed to identify the etiology of the deaths (Gill and Darby 1993, p. 39). This involved mortality of 150 adult birds or 31 percent of a mainland population estimated at the time to include 240 breeding pairs. Subsequent investigation of avian malaria seroprevalence among yelloweyed penguins found that the mortality features, climatological data, and pathological and serological findings at the time conformed to those known for avian malaria outbreaks (Graczyck et al. 1995, p. 404), leading the authors to conclude that avian malaria was responsible for the die-off. These authors associated the outbreak with a period of warmer than usual sea and land temperatures. More recently, Sturrock and Tompkins (2007, pp ) looked for DNA from malarial parasites in yellow-eyed penguins and found that all samples were negative. This suggests that earlier serological tests were overestimating the prevalence of infection or that infection was transient or occurred in age classes not sampled in their current study. While this raises questions as to the role of avian malaria in the 1990 mortality event, the authors noted, given the spread of avian malaria throughout New Zealand and previous results indicating infection and mortality in yellow-eyed penguins, that continued monitoring of malarial parasites in this species should be considered an essential part of their management until the issue of their susceptibility is resolved. There have been no subsequent disease-related dieoffs of adult yellow-eyed penguins at mainland colonies since the 1990s (Houston 2007, p. 3). The haemoparasite Leucocytozoon, a blood parasite spread by blackflies, was first identified in yellow-eyed penguins at the offshore Stewart and Codfish Islands in 2004 (Hill et al. 2007, p. 96) and was one contributor to high chick mortality at Stewart Islands in , which involved loss of all 32 chicks at the northeast Anglem Coast monitoring area of the Yellow-eyed Penguin Trust. This parasite may have spread from Fiordland crested penguins, which are known to house this parasite (Taylor 2000, p. 59). Chick mortality was also reported at this area in (Houston 2008, pers. comm.). It is not clear if the Leucocytozoon predisposes animals to succumb from other factors, such as starvation or concurrent infection with other pathogens (such as diphtheritic stomatitis), or if it is the factor that ultimately kills them, but over 40 percent of chick mortality over three breeding seasons at Stewart Island study colonies was attributed to disease (King 2007, p. 106). The survival of infected chicks at nearby Codfish Island, where food is more abundant, indicates that nutrition can make a difference in whether mortality occurs in diseased chicks (Browne et al. 2007, p. 81; King 2007, p. 106). Healthy adults who are infected, but not compromised, by this endemic disease provide a reservoir for infection of new chicks through the vector of blackflies. No viable method of treatment for active infections in either chicks or adults has been identified. At the mainland Otago Peninsula in the breeding season, an outbreak of Corynebacterium amycolatum infection (diptheritic stomatitis) caused high mortality in yellow-eyed penguin chicks (Houston 2005, p. 267) at many colonies there and on Stewart Island (where it may have been a contributing factor to the mortalities discussed above from Leucocytozoon). Mortality was not recorded at Codfish Island or at the sub- Antarctic islands (Auckland and Campbell Islands). The disease produced lesions in the chicks mouths and upper respiratory tract and made it difficult for the chicks to swallow. All chicks at Otago displayed the symptoms, but survival was better in VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 older, larger chicks. Treatment with broad spectrum antibiotics was reported to have achieved varying results, and it is not known how this disease is triggered (Houston 2005, p. 267). In summary, disease has seriously impacted both mainland and Stewart Island populations of yellow-eyed penguins over the past two decades. A mainland mortality event in 1990, attributed to avian malaria, killed 31 percent of the mainland adult population of yellow-eyed While there is lack of scientific certainty over the impact of malaria on yelloweyed penguins, the overall spread of this disease, the small population size of yellow-eyed penguins, and evidence of its presence in their populations lead us to conclude that this is an ongoing threat. Disease events contributed to or caused mortality of at least 20 percent of chicks at Stewart Island in and complete mortality in local colonies. The continuing contribution to yellow-eyed penguin chick mortality from Leucocytozoon and diptheritic stomatitus at Stewart Island and the recent high mortalities of mainland chicks from diptheritic stomatitis indicate the potential for future emergence or intensified outbreaks of these or new diseases. The emergence of disease at both mainland and Stewart Island populations in similar time periods and the likelihood that Leucocytozoon was spread to the yellow-eyed penguin from the Fiordland crested penguin point out the significant possibility of future transmission of known diseases between colonies or between species, and the possibility of emergence of new diseases at any of the four identified breeding locations of the yellow-eyed Predation of chicks and sometimes adults by introduced stoats (Mustela erminea) (which are good swimmers), ferrets (M. furo), cats (Felis catus), and dogs (Canis domesticus) is the principal cause of yellow-eyed penguin chick mortality on the South Island with up to 88.5 percent of chicks in any given habitat being killed by predators (Alterio et al. 1998, p. 187; Clapperton 2001, p. 187, 195; Darby and Seddon 1990, p. 45; Marchant and Higgins 1990, p. 237; McKinlay et al. 1997, p. 31; Ratz et al. 1999, p. 151; Taylor 2000, pp ). In a 6 year study of breeding success of yellow-eyed penguins in mainland breeding areas, predation accounted for 20 percent of chick mortality overall, and was as high as 63 percent overall in one breeding season (Darby and Seddon 1990, p. 53). Proximity to farmland and grazed pastures was found to be a factor accounting for high predator densities

7 45503 with 88 percent predation at one breeding area adjacent to farmland (Darby and Seddon 1990, p. 57). Of 114 yellow-eyed penguin carcasses found on the South Island mainland between 1996 and 2003, one-quarter of deaths were attributed to predation. Dogs and mustelids were found to be the most common predators (Hocken 2005, p. 4). In light of this threat, protection of chicks from predators is a primary objective under the Hoiho Recovery Plan. Approaches to predator control are being established and refined at breeding sites on the mainland (McKinlay et al. 1997, pp ), targeting ferrets, stoats, and cats. The New Zealand DOC has concluded that predation is a threat that may be managed through trapping or other costeffective methods to protect chicks in nests (McKinlay 2001, p. 18). The recovery plan indicates that a minimum protection of 43 percent of nests would be needed to ensure population growth (McKinlay 2001, p. 18). The recovery plan establishes a goal of protecting 50 percent of all South Island nests from predators between 2000 and Where intensive predator control regimes have been put in place, they are effective (McKinlay et al. 1997, p. 31), capturing 69 to 82 percent of predators present. In a long-term analysis of three closely monitored study colonies, which make up roughly half the nests at the Otago Peninsula and about 10 to 20 percent of the nests on the mainland, Lalas et al. (2007, p. 237) found that the threat of predation on chicks by introduced terrestrial mammals had been mitigated by trapping and shooting, and no substantial predation events had occurred between 1984 and We do not have information on the extent to which anti-predator measures are in place for the remaining 80 to 90 percent of yellow-eyed penguin nests on the mainland of the South Island of New Zealand. Other efforts to remove or discourage predation have not been as successful. A widely applied approach of establishing vegetation buffers around yellow-eyed penguin nest sites to act as barriers between predators and their prey was found to actually increase predation rates. Predators preferred the buffer areas and used penguin paths within them to gain easy access to penguin nests (Alterio et al. 1998, p. 189). Given these conflicting reports, we cannot evaluate to what extent management efforts are moving toward the goal of protection of 50 percent of all yelloweyed penguin nests on the mainland. Offshore, at Stewart and Codfish Islands, there are a number of introduced predators, but mustelids are absent. Research indicated that the presence of feral cats could be depressing the population of yelloweyed penguins at Stewart Island. (Harper 2004, p. 26; Massaro and Blair 2003, p. 107). Weka (Gallirallus australis) have been eradicated from Codfish Island, but may prey on eggs and small chicks in the Fouveaux Strait and some breeding islands in the Stewart Island region at the southern tip of New Zealand (Darby 2003, p. 152; Massaro and Blair 2003, p. 111). Some islands, including the Codfish and Bravo group, have Norway rats (Rattus norvegicus, Pacific rats (R. exulans), and ship rats (R. rattus), which are thought to prey on small chicks (Massaro and Blair 2003, p. 107). Even though Norway rats are present on Campbell Island, evidence of egg or chick predation by terrestrial mammalian predators was not observed during two breeding seasons (Taylor 2000, pp ). At Auckland Island, it is reported that feral pigs (Sus scrofa) probably kill adults and chicks (Taylor 2000, pp. 93). At Otago Peninsula, even as objectives are set to attempt to bring terrestrial predators under more effective control, an emerging threat is predation by the New Zealand sea lion (Phocarctos hookeri). Since 1985, sea lions have recolonized the area and predation of yellow-eyed penguins has increased. Penguin remains have been more frequently found in sea lion scat samples. Two penguin breeding sites in close proximity to the founding nursery area of female sea lions have been particularly impacted. The number of nests at these two colonies has declined sharply since predation was first observed and when colonization by female sea lions first took place. As discussed above, these two sites are among those that have been intensively and successfully protected from introduced terrestrial predators between 1984 and 2005 (Lalas et al. 2007, p. 237), so declines can be directly attributed to sea lion predation. The predation has been attributed to one female, the daughter of the founding animal. Population modeling of the effect of continued annual kills by sea lions predicts the collapse of small populations (fewer than 100 nests) subject to targeted predation by one individual sea lion. At the current time, none of the 14 breeding sites at Otago Peninsula exceeds 100 nests. No action has been taken to control this predation, although removal of predatory individuals has been suggested (Lalas et al. 2007, pp ). Similar predation by New Zealand sea lions was observed at Campbell Island in 1988 VerDate Mar<15> :37 Aug 02, 2010 Jkt PO Frm Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 and was considered a probable cause for local declines there (Moore and Moffat 1992, p. 68). Some authors have speculated that New Zealand sea lion may take yellow-eyed penguins at Stewart Island, but there are no documented reports (Darby 2003, p. 152). Because of its continued role in suppressing the recovery of yellow-eyed penguin populations and because of the continued impact of introduced terrestrial and avian predators and native marine predators, we find that predation is a threat to the yellow-eyed In summary, on the basis of the best available scientific information, we find that disease and predation, which have impacted both mainland and island populations, threaten the yellow-eyed New or recurrent disease outbreaks are reasonably likely to occur in the future and may result in further declines throughout the species range. Although some predator eradication efforts within breeding areas of the yellow-eyed penguin have been successful, predation continues to affect the species, and we do not expect that regulatory mechanisms will be sufficient to address or ameliorate the threats to the species in the foreseeable future. Furthermore, the threat of predation by endemic sea lions is impacting populations on the mainland and at the Campbell Islands, and we have no reason to believe this threat will not continue to reduce population numbers of the yellow-eyed penguin in those areas. We find that disease and predation are threats to this species. Factor D. Inadequacy of Existing Regulatory Mechanisms The yellow-eyed penguin is protected under New Zealand s Wildlife Act of 1953, which gives absolute protection to wildlife throughout New Zealand and its surrounding marine economic zone. No one may kill or have in their possession any living or dead protected wildlife unless they have appropriate authority. The species inhabits areas within Rakiura National Park, which encompasses Stewart and Codfish Islands (Whenua Hou). Under section 4 of New Zealand s National Parks Act of 1980 and Park bylaws, the native plants and animals of the parks shall as far as possible be preserved and the introduced plants and animals shall as far as possible be eradicated. In addition to national protection, all New Zealand sub-antarctic islands, including Auckland and Campbell Islands, are inscribed on the World Heritage List (2008, p. 16), although no additional protections are afforded by